The recent decision in Pulte Homes Corporation v. Williams Mechanical, Inc. (Aug. 9, 2016) 2 Cal.App.5th 267 was arose from a claim by Pulte for “$69,576 based on Williams’s allegedly negligent performance of a subcontract for the installation of plumbing in two residential construction projects.”

The advance sheets contained the entire opinion. When the decision was published in the Official Reports, an important statement by the court was omitted. Here’s the omitted portion:

“The issue is complicated by the fact that a corporation can be suspended in two ways: It can be suspended by the Franchise Tax Board for failure to pay taxes or failure to file a tax return (Rev. & Tax. Code, §§ 23301, 23301.5), or it can be suspended by the Secretary of State for failure to file an annual statement of information. (Corp. Code, §§ 1502, 2205.)

“The parties have not mentioned Revenue and Taxation Code section 23561, although it has some bearing on the issue. It provides, as relevant here:

‘No decree of dissolution shall be made and entered by any court, nor shall … the Secretary of State file any such decree, or file any other document by which the term of existence of any taxpayer shall be reduced or terminated … if the corporate powers, rights, and privileges of the corporation have been suspended or forfeited by the Franchise Tax Board for failure to pay the tax, penalties, or interest due under this part.’

“This appears to mean that, if a corporation is suspended for failure to pay taxes, it cannot dissolve.”

Comment – I’m relieved that this part was not included in the published opinion. But it is certainly worrisome.

The law of payment systems has interested this writer for many years. It is an area of law filled with arcane and technical rules, most of which are never encountered in day-to-day transactions.

Think of it. Millions of checks are processed each day, yet it is a rare occurrence when a legal issue arises involving a check. The law of payment systems, then, operates smoothly and mostly invisibly.

But when a legal issue does arrive, the customer often learns of some harsh rules that favor the bank. Such is the case in Taylor Anderson, LLP v. U.S. Bank N.A., 2014 U.S. Dist. LEXIS 43667 (D. Colo. Mar. 31, 2014), where the customer learned that the phrase “the check has cleared” does not also mean “the bank cannot charge this item back to you at a later time.”

Here are the facts. Plaintiff Taylor Anderson fell prey to some version of the Nigerian scam. In September 2012, plaintiff deposited a $191,000 cashier’s check into its client trust account. On October 1, after deducting a $2,000 fee, plaintiff informed the bank that it planned to wire the remaining $189,000 in check proceeds to its “client” in Japan.

By email, a firm employee asked whether the check “had cleared.” A bank employee followed up an hour later in an email stating that the check “was drawn on Chase, and has cleared.” Based thereon, plaintiff initiated the wire transfer to Japan.

Several days later, Chase Bank determined that the check was fraudulent.

Note: This really shouldn’t happen under payment system law. It should be difficult for a fraudulent cashier’s check to enter the system, particularly in this amount. Plaintiff would have been better served to obtain payment directly from Chase Bank as an “on us” item.

Thereafter, U.S. Bank (the holder of the trust account) charged-back the $189,000 against Taylor Anderson. The law firm filed an action sounding in theories of breach of contract, negligent misrepresentation, fraud, and negligence.

This quote tells you where the court is going with the case. Buried in the customer account agreement, the court found a provision which “explicitly states a second time the just because a deposit has ‘cleared,’ it does not follow that the funds are definitively in the account or that the crediting of those funds is not subject to reversal.”

Note: That’s certainly not the analysis that most bank customers were expect. According to the court, you need to confirm that the check (i) “has cleared” and that (ii) there is no continuing “right of reversal.”

The court held that there was no misrepresentation, finding that:

“This Court sees no representation from U.S. Bank establishing that the check had both cleared and that the credit in the account was not subject to reversal. Rather, all the representations in the record demonstrate that U.S. Bank stated only that the check had ‘cleared’ …

“Contrary to Taylor Anderson’s contentions, U.S. Bank did not provide false information to Taylor Anderson – it merely provided information that was accurate and faithful to the Agreement, but which Taylor Anderson did not fully appreciate.”

Note: There are your magic words. If you ask the bank whether the check has “cleared,” you also need to confirm that the check “is not subject to reversal.” Otherwise, you will be exposed to a chargeback.

Having found for the bank on the breach of contract theory, the court ruled against plaintiff on all three remaining counts by application of the “economic loss” rule, another technical “rule” that can sneak up on an unsuspecting plaintiff.

Explained the court,

“Next, Taylor Anderson advances negligence, negligent misrepresentation, and fraud claims against Defendants. All three of these claims are predicated on Taylor Anderson’s allegation that the Defendants’ ‘voluntarily investigated the origins and validity of the check in question and either fraudulently or negligently reported what they had determined to Defendants.’

“These claims are all barred by the Economic Loss Rule … Broadly speaking, the economic loss rule is intended to maintain the boundary between contract law and tort law …

“The rule prohibits a party suffering only economic loss from the breach of an express or implied contractual duty to assert a tort claim for such a breach absent an independent duty of care under tort law …

“Taylor Anderson attempts to argue around the force of the Economic Loss Rule by suggesting that defendants incurred allegedly ‘independent duties’ by allegedly agreeing to investigate the validity of the check. But that is just another way of saying that the defendants were performing their contractual duty.”

That’s tough sledding for plaintiff – a pair of gotchas did in the law firm.

This chart shows the unemployment rate in Fresno County (on a monthly basis) from 2006 to 2016. It is based on the official data compiled by the California Economic Development Department. (click to enlarge)

Some points of interest:

● The highest monthly unemployment rate was 18.4% in February 2010.

● The lowest monthly unemployment rate was 6.4% in September 2006.

●The President of the Federal Reserve Bank of San Francisco says that his goal is an unemployment rate of 4.9%, so we have a long ways to go in Fresno County.

● The unemployment rate touches its lowest level on an annual basis each September (not surprisingly corresponding with harvest season).

● I read a report stating that Fresno County had experienced 59 consecutive months of a decrease in the unemployment rate. That report is not supported by the data.

● How does the decrease in migrant farm labor affect the Fresno County numbers? Hard to tell. Many reports say that the number of migrant farm workers has decreased in the past decade. Yet Fresno County’s unemployment rate in 2016 is much higher than it was in 2006. Fewer migrant workers but higher unemployment? Does not make intrinsic sense.

There’s an old saying – “You can’t fight city hall.” In the case of a homeowners association, the saying should be, “You can’t afford to fight a homeowners association.” Because the deck is stacked against the homeowner.

In the recent case of Rancho Mirage Country Club Homeowners Ass’n v. Thomas B. Hazelbaker (Aug. 8, 2016) ___ Cal.App.4th ___, the stakes for the homeowner were dramatically low. “Defendants made improvements to an exterior patio, which plaintiff Rancho Mirage Country Club Homeowners Association contended were in violation of the applicable covenants, conditions and restrictions (CC&Rs).”

What was the original dispute? “The agreement called for defendants to make certain modifications to the patio, in accordance with a plan newly approved by the Association; specifically, to install three openings, each 36 inches wide and 18 inches high, in a side wall of the patio referred to as a ‘television partition’ in the agreement, and to use a specific color and fabric for the exterior side of drapery.”

It seems the defendants had a burr under their saddle regarding the modifications. “Subsequently, the parties reached [a modified] agreement … instead of three 36-inch-wide openings, two openings of 21 inches, separated by a third opening 52 inches wide, were installed in the wall, and a different fabric than the one specified in the mediation agreement was used for the drapery.”

Oy vey. Someone went to court over this issue? “While the lawsuit was pending, defendants made modifications to the patio to the satisfaction of the Association. Nevertheless, the parties could not reach agreement regarding attorney fees.”

In the end, the fight was over attorney’s fees. Here’s a big hint – never go to trial if the only issue in dispute is attorney’s fees. Figure out how to settle.

According to the court, the Association prevailed in the litigation. “The analysis of who is a prevailing party [ ] focuses on who prevailed on a practical level by achieving its main litigation objectives … The Association wanted defendants to make alterations to their property to bring it in compliance with the applicable CC&Rs, specifically, by installing openings in the side wall of the patio, and altering the drapery on the patio. The Association achieved that goal.”

Another hint – The homeowner, as a practical matter, will never achieve a complete victory in litigation. Any relief to the Association tips the attorney’s fees statute to the Association.

Held the court, “Once the trial court determined the Association to be the prevailing party in the action, it had no discretion to deny attorney fees. The magnitude of what constitutes a reasonable award of attorney fees is, however, a matter committed to the discretion of the trial court. As noted above, in reviewing for abuse of discretion, we examine whether the trial court exceeded the bounds of reason.”

And, to rub salt in the wound, “The Association correctly asserts that if it prevails in this appeal it is entitled to recover its appellate attorney fees …

“The judgment [for $18,991 in attorney fees, plus $572 in costs] is affirmed. The Association is awarded its costs and attorney fees on appeal, the amount of which shall be determined by the trial court.”

California still recognizes certain antiquated common law causes of action. When I say antiquated, I mean that the cause of action has been known at law from longer than 600 years.

One of the common law causes of action is the “account stated.” Here’s an explanation from Karl Llewellyn, the principal draftsman of UCC Article 2 (“Sales”) and an eminent commercial law historian, regarding the basis for an “account stated.”

“A situational concept has to do with some collection of events or people or both seen as recurring, seen as a type … We have, for instance, a situational concept of ‘account stated,’ with rules of law clustered around it which give it a peculiarly definitive character in settling up the state of obligation.

“It was built around periodic reckoning up of running accounts in a world in which book-keeping was not yet what it now is, prices for goods shipped were not reckoned by contract in advance, currencies varied from town to town, and mails were slow.

“‘Stated’ had then a punch. It implied thoughtful, careful going over on both sides as for a grave affair, and it implied real need for getting clarity about a fresh start.

“None of this is in the flavor of the label as the conditions on which the high significance of the situation rested have moved from under. The principle has faded out.”

As should the cause of action, which lingers on long after its purpose has faded.

Karl N. Llewellyn, The Theory of Rules, edited and with an introduction by Frederick Schauer (Univ. of Chicago Press 2011)

The recent decision in Janice H. v. 696 North Robertson, LLC (July 14, 2016) ___ Cal.App.4th ___ addressed the always difficult question of premises liability. More specifically, When is the operator of real property liable for an injury to a guest in a unisex bathroom? The court’s answer – a resounding, It depends.

The facts were somewhat lurid, or as we might say, Only in LA. “On a Sunday in March 2009, Plaintiff drank with a friend at bars in Pasadena and then in West Hollywood.

“Plaintiff went to Here Lounge to wait for her friend. At the time, Here Lounge was a very popular West Hollywood dance club and bar … Here Lounge also fostered a sexually charged atmosphere by permitting bartenders to wear nothing but underwear.”

Comment – The Dept of Alcoholic Beverage Control later closed the club, which was described as a gay bar, based on “allegations of lewd conduct by go go dancers.”

From the Here Lounge (now closed).

Explained the court, “Here Lounge designed the bar to have a common restroom area accessible to both men and women. On busy nights, a long line of patrons waited to use the restrooms …

“Plaintiff went into an ADA restroom stall and shut the door. As was common among patrons of Here Lounge, Plaintiff did not lock the door.”

Comment – How in the world was this fact proven – That it was “common” for patrons at the club to leave the door to the bathroom stall unlocked?

While in the bathroom stall, plaintiff was assaulted by a “man [ ] later identified as Victor Cruz, a bus boy at Here Lounge … The assault, which caused Plaintiff to lose her virginity, lasted about five minutes and ended with Victor ejaculating on Plaintiff’s dress.”

The jury found in favor of plaintiff, and awarded $5.42 million in damages. The verdict was affirmed on appeal, because, frankly, jury verdicts are always affirmed on appeal.

Here’s how the court handled the issue of premises liability. “The issue is whether Here Lounge owed a duty to use reasonable care in securing the restrooms for its patrons … A possessor of land owes a duty to an invitee to make the property reasonably safe for the intended use by the intended user. Thus, the property holder only has a duty to protect against types of crimes of which he has notice and which are likely to recur if the common areas are not secure.”

The club owner argued that it was not liable because there had been no prior assaults. This argument was unavailing. “Here Lounge argues it has no duty unless and until it experiences a similar criminal incident. We disagree. While a property holder generally has a duty to protect against types of crimes of which he is on notice, the absence of previous occurrences does not end the duty inquiry. We look to all of the factual circumstances to assess foreseeability.”

Comment – Great. It’s always a “facts and circumstances” question.

“In this case, Here Lounge promoted a sexually charged atmosphere and designed an open restroom area allowing unrestricted entry for men and women. It designed the larger ADA stalls with full length walls shielding the occupants from view.

“Here Lounge knew that sexual activity in the restrooms and elsewhere in the club was an ongoing issue … There was testimony that sexual activity in the club increased towards the end of the night and tended to occur in the ADA bathroom stalls, like the stall where Plaintiff was raped, because the full length doors shielded the occupants from view. The owner also admitted that an employee once observed a woman performing oral sex on a man at the club and ignored it …

“This evidence [ ] made the risk of harm to intoxicated and vulnerable patrons reasonably foreseeable, regardless whether the club was on notice of a prior similar incident. Knowing the potential serious harm of non-consensual sex, a reasonable person managing the property would have posted a guard in the restroom area whenever the club was open to the public, even when attendance tapered off.

“The burden for monitoring the restroom area during business hours was small, requiring only a change in policy to eliminate the guards’ individual discretion to leave the restroom area and roam the premises when patronage dwindled.”

The remedy of unlawful detainer is available in three situations under California law, most commonly when a tenant holds over after termination of the lease, or when the tenant continues to occupy the property after breach of the lease.

Less commonly, unlawful detainer is available to an owner “against an employee, agent, or licensee whose relationship is terminated,” and in the third situation, to a purchaser at a foreclosure sale against the former owner and other occupants.

In Taylor v. NU Digital Marketing, Inc. (2016) 245 Cal.App.4th 283, the parties entered into a hybrid contract. Although styled a contract for sale, the court held that the contract actually was a lease, seemingly tied to an option to purchase, such that the remedy of unlawful detainer was available to the owner.

Note to potential purchasers: An unrecorded “contract of sale” that does not include a deed from the owner to the purchaser is an invitation for trouble. The court will want to fit the contract into one of its traditional modes of analysis. As the following decision shows, the court might view the document as a lease, with potentially disastrous consequences to the purchaser. Be careful when you try to be creative in making a grant of real property.

Now to the facts. In August 2012, the parties entered into an agreement entitled “Contract of Sale Residential Property.” The contract provided that “plaintiffs (designated ‘Seller’ in the agreement) agreed to sell a piece of property to defendant (designated ‘Buyer’ therein) for $1.25 million subject to the following terms and conditions:

“Paragraph 1 required defendant to ‘consummate’ the purchase ‘within 60 months of the execution date of the agreement’ by making ‘payment’ of the purchase price, i.e., $1.25 million through [escrow].”

Comment: That sounds like an option, exercisable in 60 months. An option to purchase is not the same a contract for sale. The option must be exercised by act of the grantee, while the contract for sale is enforceable per se.

“Paragraph 2 purported to divide the purchase price into five components: (1) a grant of equity in defendant corporation (referred to as the ‘Equity Grant’); (2) payment of all property taxes and insurance costs from the move-in date; (3) payment of all homeowners association fees and any related penalties or special assessments; (4) the ‘Down Payment’; and (5) ‘Probationary Installment’ payments of $2,300 per month for 60 months (also referred to as ‘Probationary Payments’).”

The dispute arose when “the probationary installment payments increased to $4,216.48 in accordance with the provision allowing for an upward adjustment of such payments to match plaintiff’s adjustable rate mortgage payment.”

Now the conflict comes into sharper focus. If you “rented” a property, with a fixed purchase price, and paid 100% of the owner’s mortgage payments plus property taxes plus homeowners association fees, then you might believe you had purchased the property. But this court did not agree – “In addition to awarding possession to plaintiffs, the court awarded damages in the amount of $31,683.68 and declared the agreement forfeited.”

The court started by explaining that “Unlawful detainer actions are authorized and governed by state statute. The statutory scheme is intended and designed to provide an expeditious remedy for the recovery of possession of real property … Unlike the foregoing situations, a vendee in possession of land under a contract of sale who has defaulted in the payment of an installment of the purchase price, is not subject to removal by the summary method of unlawful detainer.”

Held the court, “The relationship created by the agreement must be characterized by reference to the rights and obligations of the parties and not by labels … While defendant also agreed to purchase the property within the lease term, possession of the property was conditioned upon payment of the probationary installments, which entitled defendant only to continued possession, and were therefore rent.”

“Probationary payments” in a real estate contract? I never heard of such a thing, and neither had the court. Taylor v. NU Digital Marketing, Inc. (2016) 245 Cal.App.4th 283

Today, McCulloch v. Maryland (1819) is cited for its interpretation of Congress’ powers under the Constitution. But the case actually involved the Second Bank of the United States, a contentious period in our history.

The first Bank of the United States was established in 1791 by Congress. It had a 20-year charter. Hamilton was a strong proponent. It was not rechartered at the end of its 20-year term.

Then came the War of 1812. The war triggered additional financial obligations by the United States government.

In 1816, Congress chartered the Second Bank of the United States. McCulloch v. Maryland was a challenge to the legality of the bank. Chief Justice Marshall ruled in favor the bank. Today, the case is largely known for its discussion of Congress’s ability to enact “necessary and proper” legislation in furtherance of its powers.

The specific legal issue in McCulloch v. Maryland involved a tax that the state of Maryland levied on the operations of all banks within the state, including the Second Bank of the United States. McCulloch, head of the Baltimore Branch of the Second Bank of the United States, refused to pay the tax. McCulloch was sued by the state of Maryland, and found liable for the tax.

The Supreme Court held that the tax as levied on Second Bank of the United States was unconstitutional, using the famous phrase, “the power to tax involves the power to destroy.” At the same time, the court upheld the constitutionality of the bank.

Then came Andrew Jackson, elected in 1828, and reelected in 1832. Jackson was strongly opposed to the bank. He vetoed congressional legislation in 1832 in 1834 and would have extended the charter of the bank. Thus, the national bank came to an end at the end of its 20-year term; the bank continued as a private corporation in Philadelphia, and was ultimately liquidated in 1841.

There is some speculation that Roger Taney wrote Jackson’s veto of the 1832 legislation. Taney also served as Secretary of the Treasury and U.S. Attorney General. Interestingly, Taney became Chief Justice in 1836 after Marshall’s retirement. Taney is infamous for the Dred Scott decision.

Not that I really understand national banking law, just that I can see how some of the pieces fit together.

The High Commission was a court that existed in England for more than a century, engendering substantial political dispute. Originally intended for ecclesiatical disputes, the spread of its jurisdiction caused major friction. Yet its records have all disappeared, save for contemporaneous writings. Here is some facinating history.

“Historians have seen in the High Commission’s existence and character one of the chief causes of the Revolution of 1640, one of the most cogent explanations of the popular distrust of Charles I. They have found it the only adequate explanation of the strength of the Puritan movement, which enabled it for a time to abolish the English Church altogether, and which must have rested (it has been supposed) upon a widespread popular hatred of the institution as it then existed.

“The question, however, can never be settled beyond dispute. The one thing indispensable to the demonstration of the truth of this difficult matter, one way or the other, is the evidence of the official records, kept (as we know) by the various Registrars of ‘the Commission’. These would at once reveal by the presence or absence of regularity and continuity, and by the date at which they began to be regular and uniform, whether and when there were various bodies of commissioners or one Court of High Commission.
“But the records have disappeared. That they were accidentally lost during the seventeenth and eighteenth centuries seems improbable. Surely mere accident can scarcely account for the disappearance of registry books, act books, immense files of pleadings and lawyers’ briefs, and bales and sacks of papers similar to those which the Commissioners left at Durham; in short, of every scrap of evidence great and small connected with the Court, except a couple of volumes of the Act Books containing the cases of Bastwick and Burton – needed of course as evidence in the proceedings in the House of Commons to annul their sentences – and a few score formal papers which happened to be in the bags of miscellaneous letters and petitions at the Tower.

“So large a bulk of papers, as the records of the Commission must have been, would, if merely mislaid, hardly have escaped the notice of the Historical Manuscripts’ Commissioners in either public or private archives; and if they were hidden at any time, there would seem to be at present no reason for longer concealment.

“The Great Fire, which destroyed the documents collected at St. Paul’s Cathedral, might explain the loss of the Commission’s records if it could also account for the disappearance of the archives of the Bishop of London at Fulham Palace, which must have been extraordinarily rich in material connected with the Court.

“But the records seem to have disappeared before 1645. Laud complained of their seizure by his enemies in 1640; at his trial he pleaded for their production and claimed that they would completely vindicate him; from that day to this they have never been heard of. All this lends colour to the hypothesis that they were destroyed by order of the Long Parliament, together with all the papers of the High Commission that could anywhere be found.

“The Puritans and the common lawyers united in the passage of that Act not only to abolish the Court which then existed but to make impossible its revival at any future time. They well knew that the Act of one Parliament could not bind its successor; and how could they hope to be permanently successful in securing their object, if they left behind them a voluminous series of records, showing that a law-court had been in operation for at least half a century, not only with the full approbatian of the King and of the ecclesiastics, but with the acquiescence of the common lawyers.”

Roland G. Usher, Ph.D., The Rise and Fall of the High Commission (Oxford at the Clarendon Press 1913)

Sometimes a court provides a clear statement of the law. Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486 is one such opinion, providing a definite and authoritative answer to the issue of whether a trust is an entity – it is not.

From the opinion.

“Courts often speak of the alter ego doctrine as if it applied to a trust as an entity. But a distinction must be made between a trust and a trustee. The general rule that a trust is a relationship is universally recognized by U.S. cases and statutes, and is consistent with the prevailing norms of the entire common-law world. The fundamental nature of this relationship is that one person holds legal title for the benefit of another person.

“Thus, in actuality, a trust is not a legal person which can own property or enter into contracts. It is the trustee or trustees who hold title to the assets that make up the trust estate … Because a trust is not a legal entity, it cannot sue or be sued, but rather legal proceedings are properly directed at the trustee …

“As recognized in California: Unlike a corporation, a trust is not a legal entity. Legal title to property owned by a trust is held by the trustee. A trust is simply a collection of assets and liabilities. As such, it has no capacity to sue or be sued, or to defend an action …

“Because a trust is not an entity, it’s impossible for a trust to be anybody’s alter ego. That’s because alter ego theory, which is simply one of the grounds to ‘pierce the corporate veil,’ is inescapably linked to the notion that one person or entity exercises undue control over another person or entity. However, a trust’s status as a non-entity logically precludes a trust from being an alter ego.

“But while applying alter ego doctrine to trusts is conceptually unsound, applying the doctrine to trustees is a different proposition. Trustees are real persons, either natural or artificial, and, as a conceptual matter, it’s entirely reasonable to ask whether a trustee is the alter ego of a defendant who made a transfer into the trust. Alter-ego doctrine can therefore provide a viable legal theory for creditors vis-à-vis trustees.

“Thus, in the present case, Greenspan properly sought to add Moti Shai, the trustee of the Shy Trust, as a judgment debtor. If Moti Shai is the alter ego of Barry Shy, then Barry may be considered the owner of the Shy Trust’s assets for purposes of satisfying the judgment. The trial court erred in concluding that the alter ego doctrine could not be used to reach the assets of a trust.”